The article is devoted to the analysis of abuse of procedural rights in civil and economic proceedings. The views and approaches to the problem of abuse of rights available in the legal literature ...are considered. Based on the review of scientific literature, the conclusion has been made that there are two general theoretical constructs for understanding the concept of “abuse of procedural rights” within the framework of two approaches. The first approach involves the definition of abuse of procedural rights as misuse of procedural rights, and the second approach – as a type of procedural offence. The article analyses the national legislation on the subject matter of the study. It is argued that the abuse of procedural rights is a certain situation which participants to court proceedings find themselves in, whose rights are violated and are directly related to the rights of the person who abuses them. The exercise of procedural rights is carried out by one party to the dispute within certain limits, as long as it does not contradict the interests of the other party. Violation of these limits leads to the emergence and existence of such a legal phenomenon as abuse of rights. It is established that abuse of procedural rights means that one of the parties to a dispute, which formally has certain rights, unlawfully exercises them, violating the extent and type of behaviour defined by the procedural law, while taking advantage of the fact that these rights cannot be objectively clearly defined by means of direct prohibitions. In other words, when exercising their rights, the parties to the dispute do not take into account all the actual circumstances and do not take into account the possible harm to each other’s interests. Attention is drawn to the fact that the diversity of procedural rights in civil and commercial proceedings gives rise to a corresponding number of types of their abuse by the parties to a case. Due to the absence of a clear list in current legislation of the types of abuse of procedural rights and the existence of certain judicial practice in resolving this category of cases, it should be noted that there are various classifications by scholars.
The purpose of this article is to analyze abuses of procedural right in civil and arbitrazh proceedings of the Russian Federation in the context of judicial review. The problem posed by the author is ...studied from “general” to “specific”: from the study of the potential for abuse of the right to appeal to the isolation and isolation of separate blocks of bad faith procedural behavior, typical for persons involved in the case. The author was able to identify four blocks of procedural abuse at the appeal stage: attempts to review judicial acts not in the manner prescribed by applicable law; circumvention of the prohibition to submit new evidence; inconsistent procedural conduct, as well as unreasonably prolonging the process of review. In addition, this article raises the question of the applicability of certain negative consequences for abusers in appellate and subsequent court proceedings. The article draws a conclusion about correlation of special norms (part 2 of article 111, part 5 of article 159 of the Commercial Procedure Code of the Russian Federation, article 99 of the Civil Procedure Code of the Russian Federation) with a basic general consequence of mala fide procedural behaviour — refusal to satisfy claims of an abuser fully or partially.
The paper discusses the issue of compensation for damage caused by the abuse of procedural rights as a measure within the oppressive apparatus for sanctioning the abuse of process in civil ...proceedings, which issue is, unlike others related to the idea of prohibition of abuse of rights within the system of civil procedure, the least treated in the procedural doctrine. The author deals with procedural aspects of certain essential issues that are important in the context of the matter concerned, highlighting the nature of the claim for damages caused by the abuse of process, the manner this right is realized (whether in the pending litigation or by initiating a separate civil procedure), the procedural form of the claim for compensation of damages, etc.
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The prohibition of abuse of rights is an interdisciplinary constitutional principle, which the court should follow when resolving a particular dispute. The limits of realization of subjective rights ...are determined by the criterion of the good faith behaviour of an authorized subject; however, the good faith category is evaluative and implies freedom of judicial discretion. The good faith of participants in procedural legal relations is presumed when they exercise procedural rights and perform duties in civil and administrative proceedings. This presumption is rebuttable. The author wants to know who is responsible for rebutting this presumption and whether it is possible for the court to play an active role and to monitor the implementation of procedural rights in the adversary process if the persons involved in the case do not refer to the facts of unfair behaviour. Based on the division of the process into material and formal one, the author concludes that, when there is an abuse of procedural rights, the court should be proactive in order to protect both the interests of justice and the interests of the persons involved in the case.
The article discusses the abuse of procedural rights in Polish and European civil procedure law and the notion of private and public interest. The issue of abuse of procedural rights is a category of ...applying the law. At the current stage of development there is no simple transposition of the issue of legal interest on the institution of abuse of procedural right; undeniably, the lack of current and real interest, with the assumption of fulfillment of other prerequisites, may be contemplated in categories of abuse of right by the court under ius dicere. In the Polish law it is not sufficient to analyse this phenomenon solely in the sphere of procedural locus standi and there shall be the interest in taking a specific step. There also shall be the awareness of the party taking the step as to its inadmissibility and intention to harm the other party, as e.g. in case of fictitious actions. In the European area it is additionally necessary to create methodology and general approach to abuse of right in European civil proceedings and finding compromising approach towards understanding of the notion of the interest in Roman and Germanic law systems. Because application and development of the law due to lack of procedural fairness and good faith is rather difficult to verify and to define, the advantage of adopting admissibility of a separate international institution of abuse of procedural right would lie in the possibility of applying a universal approach towards abuse of procedural right in all member states. Thiswould mean that each court of the member state would apply the same standard of the test. Finally, the alternative use of exclusively national concepts of abuse of procedural right cannot be continued. It can be assumed that confirmation of the existence of the abuse of European procedural right in a given case would require existence of objective and subjective factors.
The issues of the status of good faith of participants in civil proceedings as an independent principle are investigated, taking into account the degree of its legal regulation and the existence of a ...legislative prohibition to abuse civil procedural rights. An outline is given of the state of development of the problem in the scientific literature, as well as legislative regulation in procedural legislation.It has been argued that the modernization of civil procedural law in some way influenced the modification of a competitive model of civil justice, based on its tasks - fair, impartial and timely consideration and resolution of civil cases with the aim of effective protection of violated, unrecognized or challenged rights, freedoms or interests of individuals, rights and the interests of legal entities, the interests of the state. This factor has led to a rethinking of the principles of civil justice as a cornerstone of the legal regulation of civil procedural legal relations, Considering that in the competitive model of civil justice, the implementation of the procedural rights and procedural obligations by participants in civil proceedings is essential in the presence of the provision contained in part 1 article 44 of the Civil Procedure Code of Ukraine, which provides that participants in the trial and their representatives should use procedural rights in good faith and abuse of procedural rights is prohibited.The author proves that the analysis of procedural legislation and scientific literature on the outlined problem gives grounds to assert that in the system of principles of civil justice the principle of good faith of participants in civil justice has independent status, structural content and defines: 1) the prohibition of abuse of procedural rights; 2) the requirement of honest performance of procedural duties; 3) the prohibition of contradictory behavior of the parties, or the rule of procedural estoppel; 4) the prohibition of other illegal impediments to the administration of justice (for example, the prohibition of misleading the court, the prohibition of the use of lost procedural powers, etc.).
The radical political changes that have taken place in recent years in connection with Ukraine's desire for integration into the European community have led to another judicial reform. As part of the ...legislative reform, a new version of the Code of Civil Procedure (CPC) was developed and adopted in 2017. The aim of this study is to identify, structure and analyze the fundamental changes that have occurred in the new version of the Code, and to trace outline trends in legislation of Ukraine of such concept as proof and reliability of evidence. The research substantiates the need to separate electronic evidence as an independent means of proof in civil justice, to analyze new innovations in Ukrainian law, and to show progressive vectors of change in civil law in Ukraine. This study may form the basis for further research into civil justice reform.
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This paper analyses the issue of abuse of rights in criminal proceedings. Based on jurisprudence and doctrinal writings about the criminal proceedings, an attempt was made to provide a separate ...definition of this concept. Then the focus was shifted to seeking a legal basis for sanctioning manifestations of abuse of procedural right, referring to the current legal status, as well as formulating de lege ferenda postulates in this respect.
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